CPD16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-04-12|Before: Gleeson J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GLEESON J: 1 This is an appeal from a decision of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing an application for judicial review of a decision of the Immigration Assessment Authority ("IAA"): CPD16 v Minister for Immigration & Anor [2017] FCCA 823 ("FCCA judgment"). In its decision, the IAA affirmed a decision of a delegate of the first respondent ("Minister") not to grant the appellant a protection visa. 2 The amended notice of appeal raises the following two grounds of appeal: (1) the FCCA judge erred at [42] of his Honour's reasons in drawing the inference that a particular social group claim did not arise on the papers before the IAA; and (2) the FCCA judge erred at [58] and [59] of his Honour's reasons.

IAA decision 6 The IAA accepted the following elements of the appellant's claims, raised by the appellant on the appeal: (1) The appellant was involved in community work and a cricket club. In that capacity, in in the lead up to the 2008 Eastern Provincial Council elections, the appellant was approached by Karuna Group's political wing, the Tamil Makkal Viduhalai Pulikal ("TMVP"), contesting the election as part of the ruling United People's Freedom Alliance and was asked to support and garner the club's support for those groups in the upcoming elections. The appellant refused to involve himself and the club in the TMVP campaign and did not undertake any political activities for any party during 2008. (2) Following the elections, club members were forced to attend celebrations and were humiliated by the TMVP by being forced to provide firecrackers for the victory celebrations; two club members who had supported the rival EPDP candidate were abducted and badly beaten; and the appellant (and other senior club members) were sought after by armed TMVP supporters. The appellant was sought at his mother's home and his aunt's home on three occasions. The appellant stopped going to work and going to the club because he feared that he would be abducted and beaten like the two other club members. (3) After returning from two years in Qatar (from March 2009 to March 2011), the appellant returned to an active and senior role in the sports club in 2012. In the lead up to the 2012 Eastern Provincial Council elections, the TMVP again approached the appellant for campaign assistance and to recruit supporters from the club. The appellant again refused. On this occasion, the appellant supported an unsuccessful Tamil National Alliance ("TNA") political party candidate. (4) The appellant and his aunt were questioned by the Sri Lankan Army ("SLA") about their election activities in around 2012 at his aunt's home. (5) Several members of the appellant's family have been active supporters of the Tamil Congress and have been targeted for their political opinion. (6) The appellant may have had some similar low-level political involvement with the Illankai Tamil Arasu Kachchi ("ITAK") or TNA upon his return to Sri Lanka from Qatar. 7 Concerning [6(4)] above, the IAA said, relevantly, at para 16: I accept they [sic] CID [Criminal Investigation Department] knew his name at this time and about his activities assisting with the campaign but I find the authorities' questioning of the applicant on this occasion was opportunistic. I find the authorities did not come to his aunt's house looking to question him, but took the opportunity to question him because he was present. While I accept the applicant found this intimidating, I am satisfied neither his aunt nor himself were harmed or threatened during this visit. 8 Also concerning [6(4)], the IAA did not accept that the TMVP, SLA, Criminal Investigation Department ("CID") or anyone else was searching for the appellant after he was questioned at his aunt's house. 9 Concerning [6(5)] above, the IAA was not satisfied that the appellant's family has suffered any adverse consequences on account of his relatives' profiles or that the authorities have "an adverse interest in the applicant as the only surviving politically active male family member still in Sri Lanka". 10 The IAA did not accept that the appellant was of adverse interest to the TMVP, SLA, CID or other authorities when he departed Sri Lanka in 2012, nor that he has subsequently become of interest to them. 11 The IAA did not accept that, as an ITAK/TNA supporter from the Eastern Province, and taking into consideration his family's activism with the Tamil Congress, the appellant would be perceived to be pro-LTTE or considered a separatist activist upon return.

First ground of appeal: particular social group 12 The first ground of appeal concerns whether the IAA should have considered whether the appellant had a well-founded fear of persecution arising from his membership of a particular social group within the meaning of s 5L of the Migration Act 1958 (Cth) ("Act"), namely a sports club. 13 Concerning this issue, the FCCA judge said (at [42]): In support of ground 1, Mr Tambimuttu, the solicitor for the applicant submitted that there was a social group that arose on the papers before the Authority that should have been the subject of findings. It was submitted that the applicant was a member of a social group by reason of being a member of a sports club. Mr Tambimuttu submitted that that sports club played a political role. There was no reference in the Authority's reasons in support of this club playing any political role. There was no claim expressly made that the applicant was a member of a social group by reason of being a member of a sports club. No such claim arose on the papers before the Authority. 14 In his written submissions, the appellant's solicitor, Mr Tambimuttu, argued that the FCCA judge was incorrect to state that there was no reference in the IAA's reasons "in support of this club playing any political role". Mr Tambimuttu identified the following matters said to contradict his Honour's statement: a. The applicant was approached in 2008 and 2012 by members of the TMVP in an attempt to garner the club's support and to recruit club members to work for them, this would indicate that members of the sports club did not support the TMVP. b. The applicant and other club members were humiliated by TMVP after they won the election, this would indicate that the applicant and members of the sports club having supported rival political parties. c. Two members of the sports club were abducted and badly beaten by TMVP after they won they [sic] election, this would indicate that the applicant and members of the sports club having supported rival political parties. d. The evidence before the Authority was that the applicant and other members of the sports club were supports of other rival political parties and it was dye ti [sic] this reason that the members were targeted by the TMVP. e. Therefore as members of the sports club represent the sports club and have engaged in supporting rival political parties, it is submitted that sufficient evidence did exist to have inferred that the club was involved in political activities. 15 I do not accept that the matters identified by Mr Tambimuttu demonstrate that the FCCA judge erred in his understanding of the IAA's reasons. The matters identified by Mr Tambimuttu show that the club was placed under pressure to play a political role and that club members were humiliated by TMVP after they won the election. They also indicate that there were two club members who were abducted and beaten for their support of a rival party. None of these facts permit a conclusion that the club played a political role. At most, they indicate that individuals who were club members played or may have played political roles. 16 Mr Tambimuttu acknowledged in oral submissions that the appellant did not make an express claim for protection based on his membership of a particular social group. However, he argued that the FCCA judge was incorrect to state that "No such claim arose on the papers" before the IAA. 17 Again, I do not accept that the matters identified by Mr Tambimuttu demonstrate that the FCCA judge erred in this aspect of his Honour's conclusions. As to the statements concerning the abduction and beatings of two club members, there is nothing to suggest that this was related to their membership of the club. The only suggestion is that the mistreatment was related to their political activities. As to the statements concerning pressure on the club to take a political role and the sequelae of the refusal of that pressure, the appellant did not say that membership of the club per se provided a reason for persecution. As the Minister's counsel observed, the appellant's claims were to the effect that the TMVP had threatened or harmed members of the club because they supported the rival EPDP or not cooperated with the TMVP, but not simply because they were members of the club itself. 18 Accordingly, the first ground of appeal fails.

Second ground of appeal: considering invalid application 19 The second ground of appeal concerns the proper interpretation of s 47 of the Act. Section 47 provides: (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. 20 The IAA had regard to material provided by the appellant in the 2013 invalid protection visa application. 21 At [58] and [59] of the FCCA judge's reasons, his Honour said: [58] Mr Tambimuttu submitted that s.47(3) of the Act, in essence, should be read as meaning that the information in an invalid application cannot be used in any subsequent application. The language of s.47(3) of the Act does not say so. On its face, the reference to the Minister not considering an application in s.47(3) of the Act is a reference back to the obligation under s.47(1) of the Act for the purpose of considering and making a determination of an application before the Minister. [59] Section 47 of the Act does not proscribe or prevent the use of an invalid application or material provided with an invalid application in a subsequent valid application. No jurisdictional error as alleged in the new ground 6 is made out. 22 On the appeal, the appellant's solicitor, Mr Tambimuttu, submitted that s 47(3) "commands the Minister not to consider an application that is not a valid application", citing Samuel v Minister For Immigration & Multicultural Affairs [2000] FCA 854; (2000) 175 ALR 529 at [17]. 23 This proposition does not assist the appellant. The IAA did not consider the 2013 protection visa application. The IAA considered the 2016 application (or, more precisely, the delegate's decision on that application), which was a valid application, by reference to material that had been submitted in support of the earlier invalid application. Section 47(3) had no relevance to the function of the IAA in this case. 24 Accordingly, the FCCA judge was correct for the reasons given by his Honour and the second ground of appeal fails.

Conclusion 25 The appeal must be dismissed. Costs should follow the event. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Migration Act 1958(Cth)ss 5L, 47

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